Our Platonic Guardians at it again

Just when I thought that there was nothing the Israeli Supreme Court could do to surprise me, it found a way. Yesh Gvul, a group that counsels IDF soldiers to refuse "immoral" orders, two former justices of the Supreme Court, former Attorney-General Michael Ben-Yair, and assorted other sensitive souls have petitioned the Court to rescind the appointment of Dan Halutz as Deputy Chief of Staff, on the grounds that he is lacking the requisite moral stature for position.

Halutz's crime? In his capacity as Air Force Chief of Staff, he had overall responsibility for the July 2002 targeted killing of Sadeh Shehadeh, the chief of Hamas military operations in Gaza. Along with Shehadeh, his wife and daughter and 13 other civilians died, when a one-ton bomb fell on the building in which he was hiding.

In an August 23 2002 interview with Ha'aretz, Halutz described himself as having slept peacefully the night after the attack. He defended the operation "militarily and morally" in light of the fact that the IDF had positive intelligence that Shehadeh was planning a mega-terror attack involving a ton of explosives. In the two years prior to the targeted killing of Shehadeh, 220 Israeli civilians and 16 soldiers died in suicide bombings or other terrorist attacks carried out by Hamas.

Petitioners claimed that Halutz showed great moral insensitivity by saying that he slept well. And remarkably the Court did not dismiss the petition out of hand, but rather required Halutz to explain his moral and ethical position in light of his comments to Ha'aretz.

As a consequence, Halutz has already had to engage in a series of humiliation rituals devised by the Court, including submitting an affidavit to the Court stating that he is "a moral person of values" and regrets the deaths of civilians. (Now that should really convince anyone who was in doubt.) By forcing Halutz to hire an expensive attorney and abase himself by protesting his moral virtue, petitioners have already won a major victory.

It seems not to have occurred to the Court that it had no legal standard to guide it in the evaluation of Halutz's moral fitness. Presumably it is still legal, albeit rare, to sleep well in Israel. And if it is legal to sleep well, it should also be legal to say that one slept well.

Once again the Court set itself up as the moral arbiter of the country, a group of Platonic Guardians, as former Chief Justice Moshe Landau once (critically) described them. There is no national issue upon which Israel's citizens do not deserve to hear the Court's moral views – nay are required to hear them – in the opinion of the justices. One of the leading international human rights lawyers of our time commented that there is not a single other high court in the world that would have entertained the petition against Halutz's appointment.

The Court does not even argue that the moral standards of its members – moral standards found in the ether not in any Israeli statute book – reflect some national consensus. An overwhelming majority of the Israeli public would have supported Halutz's statement to Ha'aretz in favor of killing those planning a "mega-attack," which, according to then Defense Minister Binyamin Ben-Eliezer, could have killed hundreds of Israelis, regardless of the deaths of Palestinian civilians in the vicinity.

Indeed a far greater public outcry would likely have greeted the immense solicitude shown by the IDF for Palestinian civilians if Shehadeh had succeeded in carrying out a mega-attack. Ben-Eliezer told the Knesset Foreign Affairs and Defense Committee that the IDF had postponed planned hits on Shehadeh eight times because of information of Palestinian civilians in the vicinity, most recently the week before when it learned that his daughter was accompanying him.

Neither the laws of war nor the accepted practice of nations require Israel to act so squeamishly. The first duty of any nation is to protect the lives of its citizens, and in doing so every nation places a far higher value on the lives of its citizens than the lives of non-citizens. Think of Hiroshima.

Allied bombers in World War II would not have hesitated to bomb Hitler's bunker just because propaganda chief Josef Goebbels, ym"sh, chose to keep his wife and children together with him. Nor would the United States today give a fig how many of Osama bin Laden's children were with him before bombing whatever cave he is hiding in.

Hamas is in a state of declared war with Israel, and Shehadeh was its most important military leader. Under the Geneva Conventions, enemy combatants cannot immunize themselves from attack by hiding among civilians, and when they do so, they bear the onus of the results.

Halutz was right to sleep well, even if undiplomatic for saying so instead of engaging in the prescribed hand-wringing.

THE ARROGANCE of the Supreme Court is no laughing matter. The Court controls the fate of the country to a greater degree than any other high court in the world. Consider two current examples.

The theory upon which the Gaza disengagement is predicated, Hillel Halkin explains in a recent Commentary, is that a Jewish state cannot absorb the Palestinians, nor can it expel them, and so it must separate from them, with a security fence in between. Given the attention that Prime Minister Sharon devoted to the route of the security fence, writes Halkin, it is clear that he views the security fence as a long-term de facto border for Israel.

But last summer, the Supreme Court determined that the route of the security fence around Jerusalem poses too great an inconvenience to Palestinians, and that even though Israeli citizens will almost certainly die as a consequence of rerouting, the government must nevertheless draw a new route. In a series of orders since then, the Court has made clear that it views any deviation from the 1949 armistice lines as problematic. Due to the threat of further Supreme Court litigation, construction of the security fence, which all acknowledge has played a major role in lessening terrorist incursions, has ground to a halt across the country.

Meanwhile the disengagement moves forward, as if nothing had changed, even though the Court has effectively nullified the assumptions upon which the plan was predicated.

Take another example of the Court's immense power. Two weeks ago, United Torah Judaism entered the government. The most important element of the coalition agreement was the undertaking of Likud to guarantee the continued autonomy of the chareidi school system from the recommendations of the Dovrat Commission on Educational Reform.

It is far from clear, however, that the undertaking is worth anything (which is why UTJ's entry into the government was conditional). The Supreme Court declared recently that the state may not continue to fund elementary and high schools that do not teach any part of a core curriculum. And opponents of the new coalition have threatened to petition the Court against the guarantee to excuse the chareidi sector from the core curriculum requirements. Such a suit would have a high likelihood of success.

Significantly, the coalition agreement does not require Likud to pass legislation to guarantee autonomy, and it is doubtful whether Likud would try to pass such a bill or could successfully push it through the Knesset. Neither Likud nor its Labor coalition partner would like to face the voters in the next elections as easy targets for Shinui or Yahad (formerly Meretz) for having formally granted the chareidi community educational autonomy.

So the Supreme Court will likely have the last word on the issue. And it might go even further than its last decision and declare (as language in its previous decision suggests) that the students in any institution not teaching the core curriculum are truants and their parents subject to legal prosecution.